NANDAN SINGH BISHT Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-4-48
HIGH COURT OF UTTARAKHAND
Decided on April 04,2013

Nandan Singh Bisht Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

Alok Singh, J. - (1.) THE present petition is filed seeking mandamus commanding/directing the respondent to do correct and proper investigation pursuant to the First Information Report No. 457 of 2012 Under Section 279/304A of I.P.C.
(2.) MR . Lokendra Dobhal, learned counsel appearing for the petitioner, submits that although present case is of murder, punishable under Section 302 of I.P.C., however, police deliberately registered the offence under Section 304 -A of I.P.C. He further contends had there been proper investigation, police would have filed chargesheet in respect of offence punishable under Section 302 I.P.C. According to Mr. Dobhal, the first of all police have not register the first information report under Section 302 of I.P.C. and secondly is not investigating the matter despite the fact that first information report was registered on 15.11.2012, therefore, police be directed to investigate the case properly and this court should monitor the investigation.
(3.) HON 'ble Apex Court in the case of Sakiri Vasu v. State of U.P., reported : (2008) volume 2 SCC 409 in paragraph No. 13, 15, 17, 24, 25 and 27 has held as under: "We would further clarify that even if an FIR has been registered an even if the police has made the investigation or is actually making the investigation, which the aggrieved person feels is not proper, such person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In case where the Magistrate finds that the police has not done its duty of investigating the case at all or, or has not done it satisfactory, he can issue a direction to the police to do the investigation properly, and can monitor the same. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to do order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been don, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. In view of the above mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court of file a writ petition or a petition under Section 482 Cr.P.C. we are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first under Section 154(3) and Section 36 Cr.P.C. before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned under Section 156(3). As we have already observed above, the Magistrate has very wide powers to directed registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For the grievance, the remedy lies under Section 36 and 154(3) before the officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.";


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